https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7017

Gachoka & another v Cabinet Secretary, National Treasury and Economic Planning & 7 others (Petition E051 of 2026) [2026] KEHC 7017 (KLR) (Constitutional and Human Rights) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 7017 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E051 of 2026 F Gikonyo, RE Aburili & TW Ouya, JJ May 18, 2026 Between Tony Gachoka 1st Petitioner Prof. Fredrick Onyango Ogola 2nd Petitioner and The Cabinet Secretary, National Treasury and Economic Planning 1st Respondent The Cabinet Secretary, Information, Communication and the Digital Economy 2nd Respondent The Communication Authority of Kenya 3rd Respondent The Competition Authority of Kenya 4th Respondent The Honourable Attorney General 5th Respondent Safaricom Plc 6th Respondent Vodacom Group 7th Respondent Vodafone Kenya Limited 8th Respondent Ruling 1.Vodacom Group, the 7th respondent in HCCHRPET E051 OF 2026, filed the notice of motion dated 11.2.2026 seeking an order to strike it out from these proceedings. 2.Therefore, to avoid confusion, reference to the 7th Respondent in this ruling means Vodacom Group. 3.The application is brought under sections 1A, 1B & 3A of the Civil Procedure Act, Order 2 Rule 15 and 51 (1) of the Civil Procedure Rules. 4.The application is supported by the affidavit sworn by the 7th respondent’s Group Chief Financial Officer, Raisibe Morathi on 11.2.2026. 5.It was deposed that that the underlying transaction is between Vodafone Kenya Limited and the Government of Kenya, the 7th respondent, a separate and distinct entity, is incorporated and domiciled outside Kenya in the Republic of South Africa; that it was informed by the 6th respondent about this petition; that it was not notified through proper and valid service as required; and that it thus filed a notice of appointment under protest. 6.The main grounds in support of the application are that: -1.The petitioners did not obtain leave of court to serve it outside jurisdiction as per Order 5 Rule 25 of the Civil Procedure Rules.2.Compliance with the said provision is mandatory and a precondition to the proper exercise of jurisdiction over a foreign defendant.3.The 7th respondent is not a contracting party to the sale of the Government of Kenya’s shares in the 6th respondent which forms the substratum of the petition.4.The 7th respondent is neither a proper nor a necessary party in these proceedings. Petitioner’s response 7.The petitioner opposed the application through grounds of opposition dated 14.4.2026. It contended that: -1.The application is misconceived, bad in law as it seeks to defeat substantive justice on procedural technicalities.2.The court has jurisdiction over the subject matter and all service. Any defect in service outside jurisdiction is not fatal and is curable.3.The 7th respondent has already entered appearance and actively participated in the proceedings thereby submitting to the court’s jurisdiction.4.The 7th respondent is a necessary and proper party to these proceedings and its role or beneficial interest in the impugned transaction is central to the just and effective determination of the petition.5.The application fails to meet the threshold for striking out under Order 2 Rule 15 of the Civil Procedure Rules.6.The striking out of the 7th respondent would prejudice the petitioners and hinder the court’s ability to effectually and completely adjudicate the dispute.7.The application is therefore an abuse of the court process. Submissions 8.The 7th respondent filed written submissions dated 26.3.2026 and the petitioner filed written submissions dated 14.4.2026. 9.The 7th respondent argued that the defect in service goes to the root of the court’s jurisdiction and is not a procedural technicality. 10.It complained about the petitioner’s failure to promptly respond to its application which resulted in it expending further time and resources in the proceedings unnecessarily compounding unjustified financial and other prejudice already suffered by it. 11.It also faulted the petitioners for not joining Vodafone Kenya Limited which is a necessary and proper party; direct party to and affected by the impugned transaction. It submitted that a party cannot be condemned unheard and that the granting of conservatory orders would be in vain and would offend the principles of natural justice and fair hearing. 12.The 7th respondent submitted that Article 48 of the Constitution mandates the court not only to facilitate access to its processes but to ensure that such processes are not applied in an oppressive, unjust or prejudicial manner. 13.The 7th respondent relied on Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR where the court recognized that access to justice includes the affordability of legal services and judicial process that does not impose undue burdens on parties. 14.It also relied on Hussein v Gedi; Adan (Interested Party) [2025] KEELC 931 (KLR) where the court found that the defendant was not a proper party in the proceedings and that it could not be sued on behalf of the proper party which was a registered association. 15.The 7th respondent relied on Order 51 rule 14 of the Civil Procedure Rules and Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited [2010] KEHC 282 (KLR) to argue that the failure to respond to the application amounts to an admission. It highlighted that the petitioners had not filed them more than a month after 13.2.2026 directions on filing of responses were given. 16.The 7th respondent relied on Mae Properties Limited v Kibe & another [2017] KECA 238 (KLR) on the importance of compliance with rules of court and timelines set and failure to comply invites consequences. 17.The 7th respondent relied on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR to argue that a court’s jurisdiction flows from the constitution or statute. It also relied on rule 14 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 to assert that the petitioners had a mandatory obligation to serve it with the pleadings in this petition. 18.It also relied on Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR and Peter Ochara Anam & 3 others v Constituencies Development Fund Board & 4 others [2011] eKLR to argue that the Order 5 Rule 21 of the Civil Procedure Rules on service of summons upon a foreign defendant applies where the Mutunga Rules are silent. 19.To support the assertion that the court assumes jurisdiction upon granting leave to serve summons outside jurisdiction, the 7th respondent relied on Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] eKLR, Mwilu v British Broadcasting Corporation [2024] KEHC 7937 (KLR) and Law Society of Kenya v Martin Day & 3 Others [2015] eKLR, Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] KECA 471 (KLR) 20.The 7th respondent relied on EK v PT [2024] KEHC 11722 (KLR) and Roberta Macclendon Fonville v James Otis Kelly III & 3 Others [2002] eKLR to argue that the failure to comply with Order 5 Rule 21 is not a mere procedural irregularity and that it renders the suit a nullity for want of jurisdiction over the foreign defendant. 21.The 7th respondent relied on Naomi Cidi v The County Returning Officer Kilifi & 3 others, Malindi Election Petition No. 13 of 2013 to support the proposition that knowledge of a case is not enough reason to proceed with a case against a defendant where the defendant has not been served with the pleadings of a case. 22.The petitioners argued that jurisdiction over a party may arise through voluntary submission, not only through foreign service. They also argued that where a party takes further steps in the proceedings that go beyond the jurisdictional objection, such conduct may be construed as submission to the court’s jurisdiction. For this proposition, they relied on Hassan Zubedi v Active Partners Group Ltd & 3 others [2018] eKLR and Active Partners Group Limited & another v Zubeidi; Dubai Bank Kenya Limited (In Liquidation) & another [2019] eKLR. 23.The petitioners challenged the 7th respondent’s submission that failure to obtain leave under Order 5 is fatal. It complained that such position would be overly rigid and inconsistent with constitutional principles. 24.The petitioners asserted that Article 159 (2) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. It relied on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR to the effect that courts should not pay undue attention to procedural requirements at the expense of substantive justice and Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] eKLR, that ruled of procedure should not be elevated to defeat the ends of justice. 25.The petitioners contended that in the circumstances of this case, the purpose of service which is to notify the parties has already been achieved as the 7th respondent is aware of the petition and actively participated in the proceedings. That therefore, the omission to seek leave is a procedural irregularity that is curable and does not go to the court’s jurisdiction. 26.The petitioners cited Shah v Mbogo [1967] EA 116, on the requirement that court’s discretion be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error. They also relied on D. T. Dobie & Company (Kenya) Limited v Muchina [1982] eKLR to the effect that no suit ought to be summarily dismissed unless it appears plainly and obviously discloses no reasonable cause of action. 27.The petitioners relied on Kenya Commercial Bank Ltd v Suntra Investment Bank Ltd [2015] eKLR to argue that even where an application is unopposed, the court ought to consider its merits. Analysis and Determination 28.Upon consideration of the application, the supporting affidavit, grounds of opposition, the parties’ respective submissions and authorities cited, the issue for determination is whether the 7th respondent’s name should be struck out from the petition. 29.The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out… Order 1 Rule 10 (2) of the Civil Procedure Rules 30.The court’s power to strike out a party from proceedings is discretionary but which ought to be exercised based on principle and according to the unique circumstances of a case; not on a whim. The threshold 31.The tests for determining whether a party is necessary party were set out in Werrot & Company Ltd & Others v Andrew Douglas Gregory & Others, [1998] eKLR as follows: -“i.there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question andii.it should not be possible to pass an effective decree in the absence of such a party.” are whether there a right to some relief against such a party in respect of the matter involved in the proceeding in question and whether it should not be possible to pass an effective decree in the absence of such a party.” 32.The 7th respondent’s application is anchored on two major grounds. First, that the petitioners did not obtain leave of court to serve it outside jurisdiction as per Order 5 Rule 25 of the Civil Procedure Rules. 33.Order 5 Rule 21 of the Civil Procedure Rules provides the prerequisites for allowing service out of Kenya. Rule 25 provides that the application for leave to serve summons on a defendant outside Kenya ought to be supported by affidavit or other evidence that the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found and whether such defendant is not resident in Kenya or not and the grounds on which the application is made and no such leave shall be granted unless it is made sufficiently to appear to the court that the case is a proper one for service out of Kenya under this order. 34.There is no dispute that the petitioners did not apply for leave to serve the 7th respondent under Order 5 Rule 25. There is also no dispute that the petitioners did not serve the 7th respondent. 35.The contest, therefore, is whether the petitioner’s failure to obtain the leave to serve the 7th respondent is fatal to the petition as against the 7th respondent. 36.The 7th respondent was informed of the petition by the 6th respondent. It then filed a notice of appointment under protest. 37.It contended that the petitioners’ failure to obtain leave goes to the court’s jurisdiction and that the court lacks jurisdiction over it due to the lack of proper service. It also contended that knowledge about the case is not sufficient to proceed with the case where the foreign party has not been served. 38.On the other hand, the petitioners argued that jurisdiction over a party may arise through voluntary submission, not only through foreign service. It also stated that the 7th respondent actively participated in the proceedings. 39.The Court of Appeal has discussed the rationale for leave of court to serve summons outside the court’s jurisdiction. In Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [supra], the Court of Appeal observed that: -“The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country under order V rule 23 and after such summons are served in accordance with the machinery stipulated therein. 40.The same position was echoed in the Misnak case [supra], where the Court of Appeal observed that: -“29.The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purposes of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction. The principles which govern the court in determining whether or not to grant leave are set out, though not exhaustively, under Order 5 Rule 25 ...30.Secondly, upon such leave being granted, the summons has to be served upon such a defendant. It is only upon such service of the summons that a court assumes jurisdiction over a foreign defendant and not a moment sooner. 41.Each case is an authority for what it decides. Each case depends upon its facts. 42.In Hakken Consulting Ltd & 2 others v Seven Seas Technologies Ltd & another [2017] KEHC 3592 (KLR) it was unclear how service was effected and how the 2nd Defendant, a foreign entity, entered appearance. The High Court found that Order of Rule 21(h) of the Civil Procedure Rules was applicable and thus jurisdiction was assumed by the Court which allowed the 2nd Defendant to file its defence. The court opined that this was a pre-emptory action taken by the court with the consent of the Defendants and with the full knowledge of the status of the 2nd Defendant. It robbed the Plaintiffs of the opportunity, if at all, to seek the courts leave to serve the summons outside jurisdiction. 43.In the circumstances of this case, the 7th respondent admitted that it was informed by the 6th respondent about the petition. That it then filed a notice of appointment under protest. 44.Through the instant application, 7th respondent has challenged the court’s jurisdiction based on failure to comply with Order 5 Rules 21 and 25. 45.However, the 7th respondent has acknowledged the petition and has actively participated in the proceedings. Active Partners Group Limited cases [supra]. Therefore, the 7th defendant has confirmed that it has notice of the petition ensuring that the 7th respondent has been afforded an opportunity to be heard. The first two objectives of service have been met. 46.The other objective has to do with leave before service to enable the court to ascertain that it has jurisdiction over the subject matter. 47.Order 5 Rule 21 (e) provides of: -“e.The suit is one brought to enforce, rectify, rescind, dissolve, annual, or other-wise affect a contract or to recover damages or other relief for or in respect of the breach of a contract-i.Made in Kenya; orii.Made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya; oriii.By its terms or by its legislation to be governed by the Laws of Kenya ; oriv.Which contains a provision to the effect that any Kenya court has jurisdiction to hear and determine that suit in respect of that contract,Or is brought in respect of a breach committed in Kenya, of a contract, wherever made, even though such a breach was preceded or accompanied by a breach out of Kenya which rendered impossible the performance of the part of the contract which ought to have been performed in Kenya; or” 48.The subject matter of the petition is a contract for sale of shares between the 8th respondent and the 1st respondent for the former to acquire 15% of the shares held by the 1st respondent on behalf of the Kenyan people in the 6th respondent. The petitioners claim that the National Assembly approved the share sale to take effect on 1 April 2026 to the 7th respondent. 49.The sale of the shares has been challenged in this petition which the court, in seeking for a constitution of a bench of uneven number of judges not being less than three, made a finding that the petitions raise substantial questions of law. Thus, the petitioners, on prima facie basis, have ‘a good cause of action’. 50.The 7th respondent faulted the petitioners for not joining Vodafone Kenya Limited which is a necessary and proper party- a direct party to and affected by the impugned transaction 51.However, from the amended plaint, the petitioners have joined Vodafone Kenya Limited as the 8th respondent. Of relevance, paragraphs 20 to 22 of the amended petition state as follows: -“20.The Kenyan people who are the ultimate owners of the 15% shares are now confused as to why the 1st Respondent changed the purchaser of the shares from the 7th Respondent to the 8th Respondent without explaining to the public the reasons for the changes. It is intriguing mysterious and unclear when the 7th Respondent’s name was quietly dropped on 4 December 2025, as a potential purchaser, and the circumstances and reasons for the introduction of the 8th Respondent as the ultimate purchaser.21.The 8th Respondent is not named in the Sessional Paper as the would-be purchaser and is therefore not approved by the National Assembly as purchaser.22.The 7th Respondent is the 8th Respondent’s Holding company and also a shareholder in the 6th Respondent together with Vodafone International Holdings BV. As such, the 7th Respondent stands to benefit from the confusion, lack of integrity and opaqueness of the sale on account of the 8th Respondent being the primary purchaser in the sale.” 52.From the documents provided especially the No Objection letter by CAK dated 21st January, 2026 stated that: -‘…the Authority notes that the proposed transaction will result into Safaricom PLC;A. Attaining a foreign majority shareholding at fifty five per cent (55%); 53.The Sessional Paper of December 2025 at paragraph 1.5(ii) on Strategic investor Partnership stated:‘The proposed buyer, Vodacom Group, is a long-standing investor in Safaricom, holding approximately 40% through Vodafone Kenya…’ 54.The 7th respondent is said to be the holding company of the 8th respondent and a shareholder in the 6th respondent. It is also said to be the named purchaser in the Sessional paper in question. According to the petitioner, the 8th respondent is not named as the purchaser in the Sessional paper. Beneficial ownership issues arise and have been pleaded which may justify investigation of the controlling persons of the companies which wholly constitute the shareholding of Vodafone Kenya Limited. 55.These intricate relationships make the 7th respondent a necessary or proper party to such suit properly brought against some other person duly resident or registered or served in Kenya. 56.From the foregoing, we find that the court has jurisdiction over the subject matter of the petition. 57.Ordinarily, where the court has jurisdiction over the cause of action, under the practice or power of the court, the court may; a) cause a person outside the jurisdiction to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing, or otherwise intervening; or b) order the person outside Kenya to be served. 58.We therefore, find that, this petition having been certified by the court as raising substantial questions of law, it constitutes ‘a good cause of action’ under order 5 of the CPR. The relationship between the 7th respondent and the 8th respondent as well as shareholding and beneficial ownership in respect of the 8th respondent is direct and proximate. Thus, there is a right to some relief against the 7th respondent in respect of the matter involved in the proceeding and their presence is necessary in order to determine and settle the issues in controversy; and pass an effective decree in the proceeding. 59.Thus, we find that the 7th respondent is a necessary and proper party in the petition to enable the court determine the issues in controversy completely and effectually. 60.The 7th respondent has acknowledged the petition and has actively participated in the proceedings. 61.Given the circumstances of the case and the nature of these proceedings, the objective of service has been met. Striking out the name of a necessary party in a petition which seeks constitutional reliefs founded on alleged violation or threatened violation of rights, property, the Constitution and statutory law in the proposed sale of the shares in question, defeats the whole idea of effective constitutional remedies. The appropriate remedy in the circumstances of this case, is to order service and allow the 7th respondent to file its pleadings as by law permitted. There is sufficient reason and material before the court to so direct. 62.By this course of action, no prejudice shall be occasioned upon the 7th respondent as the court has found that the petitioners have a good cause of action and the 7th respondent is a necessary party for effectual and complete determination and settlement of the issues in controversy in the petition. We have also found that the 7th respondent has acknowledged the petition and has participated in these proceedings. 63.The 7th respondent has not met the threshold for it to be struck out as a party. 64.The upshot is that the application dated 11.2.2026 is dismissed with no orders as to costs. 65.However, although the 7th respondent acknowledges the petition and has participated in the proceedings and is duly represented by legal counsel, we nonetheless direct that it be served with the petition immediately through its official email address to be provided immediately upon delivery of this ruling. The 7th respondent shall upon service file and serve its replies to the petition within 14 days thereof. Thus, the court properly assumes jurisdiction over the applicant. Orders accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF MAY, 2026--------------F. GIKONYO MPRESIDING JUDGE----------------R. ABURILIJUDGE----------------T. OUYAJUDGE